Is it a Health Care Proxy, a Durable Power of Attorney or a Living Will?

First, let’s just say that the Durable Power of Attorney in Massachusetts is a document solely for managing the financial affairs of another person and has little to do with the Principal’s health, except paying for it, of course.

The Health Care Proxy is the only legally binding document in Massachusetts for making health care decisions on behalf of another person (see my previous post on MOLST). It is relatively new, being created by statute in the 1970s, so I still see some clients who created some type of living will document early in their adult lives and never upgraded to a Health Care Proxy.

Before the Health Care Proxy document, many people had a Living Will (also known as an Advance Directive). The old living wills were very popular in California and they consisted of a list of scenarios and you would check a box for yes or no. The scenarios were complicated….”If you are in a coma and you can not eat on your own would you want a feeding tube, yes or no?” Well….what is a coma anyway? Might I come out of it? Can I say I want it for two weeks and then take it out if I don’t recover? A simple yes or no did not provide enough options for people trying to express their end of life issues.

The Health Care Proxy document does only one thing: name a Health Care Agent who can make decisions for you at such time as you can not make or communicate your own health care decisions. The idea behind the Health Care Proxy is that the Health Care Agent knows the wishes of the Principal (meaning, the person who has signed the Health Care Proxy document naming the agent) and can make knowledgeable decisions on behalf of the Principal.

With a Health Care Proxy, a doctor does not need to study a document to try and determine which one of the little boxes on the form applies in the current situation. For example, the patient may have checked the box for no ventilator or intubation. But the doctor feels as if a few days on a ventilator will give the medication a chance to work and the patient may very well recover. Wouldn’t the patient want to take that chance? But unfortunately, a checkmark in a little box can not convey those types of nuanced decisions.

A person, however, can make those types of decisions. A Health Care Agent can have a discussion with the doctor and make a decision based on the facts at hand. A person can look at all the facts and decide that the patient probably would want to try the ventilator for a week to see if his or her condition improves, or that the patient would not want to try the ventilator and should be treated with comfort care only.

So how is this different from a Living Will? The Living Will/Advance Directive is not a legally binding document in Massachusetts. It serves as valuable guidance for the Health Care Agent when the Agent is making a decision. There are many good Living Will documents available such as The Five Wishes and www.honoringchoicesmass.com. A really good Living Will provides valuable information about the patient’s wishes and can really help the Health Care Proxy make decisions. A doctor is unlikely to want to even look at a Living Will unless the doctor is helping the agent make a difficult decision. This is because a doctor is required to take the action (or inaction) directed by the Health Care Agent regardless of the wishes expressed in the Living Will.

When I am giving speeches, I often ask the audience if anyone saw the movie The Descendants with George Clooney. It’s a really good movie, by the way. It takes place in Hawaii and George Clooney’s wife is in a coma after an accident. After a week or so, the doctor comes to George and says he is required to take the wife off life support because the wife had a Living Will. George, however, is not ready to let her go. The doctor explains he has no choice. I know nothing about the law in Hawaii, but if the movie is accurate, Hawaii seems to have a valid and binding Living Will law which requires a doctor to take certain actions regardless of the wishes of the family. If George Clooney been a Massachusetts resident, he might have been able to make the decision concerning his wife rather than the hospital making the decision.

The bottom line is that every Massachusetts resident should have a Health Care Proxy. If you are a part time resident of Florida and you have a Durable Power of Attorney for Health Care be aware that the document will be very confusing to Massachusetts physicians. Try to obtain an appropriate “health care proxy” document for every state in which you live for a significant period of time during the year and in which you receive healthcare.

Margaret Hoag is an attorney with Eckel, Morgan & O’Connor, LLC in Acton, Massachusetts. She concentrates her practice in the area of elder law, including long-term care planning, guardianship and conservatorship, MassHealth (Medicaid) application, estate planning, and probate administration.

Margaret A. Hoag received her J.D., cum laude, from Suffolk University Law School and her A.B. from Bryn Mawr College. At Suffolk University Law School, she was a member of the Transnational Law Review and the winner of several writing awards including the White, Inker, Aronson Award, and the Moot Court “Best Brief” Award. Ms. … Continued